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Ramsey: Attorney general ‘enemy of job creators’

By TOM HUMPHREYThe Knoxville News-Sentinel

NASHVILLE — Lt. Gov. Ron Ramsey has set the stage for debate in a campaign against three Tennessee Supreme Court justices by characterizing them — and the state attorney general they joined in appointing — as hostile to business interests.

In a PowerPoint slideshow presentation, which Ramsey says he has shown to business groups and organizations promoting crime victim rights, the Senate speaker also cites two Supreme Court decisions as indicating Justices Cornelia Clark, Sharon Lee and Gary Wade are “soft on crime.”

Since the Ramsey slideshow was first reported last week by Nashville’s WTVF-TV, it has been roundly criticized by some as misleading and twisting the facts of cited court rulings and attorney general actions.

Ramsey shrugged off the criticism when questioned by reporters last week.

“I’m not misleading. … I wouldn’t say I’m telling half the story. I’m telling my side of the story and they’ll get to tell their side of the story. Every campaign tells half of the story,” he said. “Come on! You don’t go out and say, ‘Oh, by the way the reason you should vote against me is.

“No, campaigns are about telling your side of the story, which is what I’m telling. They tell their side of the story and the people decide,” Ramsey said.

The justices, however, are precluded by judicial conduct rules from discussing specific cases, though Ramsey said they are free to have a separate campaign committee to present their position. The justices are making a campaign-like tour of the state already and supporters have scheduled a fundraiser for their campaigns on Wednesday in Nashville — though each currently has only an individual campaign account set up and there is no joint committee to promote them.

Attorney General Bob Cooper is labeled an “enemy of job creators” in the Ramsey presentation, which notes that he joined in multistate lawsuits against businesses that cost the defendant companies millions of dollars when they were settled.

Tennessee is the only state in the nation that has an attorney general appointed by the state Supreme Court. Cooper’s eight-year term expires Aug. 31, along with the terms of the three incumbent justices appointed by former Democratic Gov. Phil Bredesen. Two Republican judges have been appointed by Gov. Bill Haslam to take office on Sept. 1.

Thus, if even one of the three Democratic justices is defeated in the Aug. 7 retention election, another Republican can be named to replace him or her by Haslam, giving Republicans a majority on the court and, presumably, an inclination to appoint a Republican lawyer to replace Cooper.

“There’s never in the history of this state been a Republican attorney general and you can’t tell me out of the hundreds of Republican attorneys in this state, there’s not a qualified Republican that could be an attorney general,” Ramsey said.

Cooper, though declining an interview, said in an email that the multistate lawsuit settlements cited by Ramsey as anti-business were all supported by elected Republican attorney generals in other states and show that “we take seriously our duty to protect Tennessee taxpayers, consumers and businesses.

“They involved automobile safety, the safety and effectiveness of drugs, Medicaid fraud, the confidentiality of personal data and mortgage servicing and foreclosure abuses that fueled the 2008 recession,” Cooper wrote. “One case involved a major drug company that also pled guilty to related federal criminal charges.

“It is unfortunate that whoever put together this list of cases didn’t do their homework,” he said.

One of the cases cited in Ramsey’s presentation was a settlement last year with Wyeth Pharmaceuticals Inc. over alleged illegal marketing of a drug used in kidney transplants. Tennessee’s share of the settlement was $768,890, according to a news release at the time, though Ramsey used the nationwide figure of $257 million in his presentation.

A Cooper spokeswoman says that, in that case, five attorneys general took the lead role, not Cooper, and four of them were Republicans. In a related matter, Wyeth also pleaded guilty in an Oklahoma federal court to violations of the U.S. Food and Drug Act and agreed to agreed to pay $233 million in criminal fines and forfeitures.

The Ramsey presentation also cites seven lawsuits in which the Supreme Court made rulings against business defendants and suggests that, with Democratic justices, the court could rule that the 2011 state law to limit non-economic damages in lawsuits violates a provision of the Tennessee Constitution, declaring “the right to trial by jury shall remain inviolate.” Some attorneys, including former U.S. Sen. Fred Thompson, a Republican, have argued that by eliminating jury discretion in deciding damages, the tort reform law violates the provision.

Two criminal case rulings are cited in the presentation, both unanimous rulings by all five Supreme Court justices.

In one, the court vacated the death penalty for Leonard Edward Smith, though upholding his conviction for two murders in Sullivan County. The court opinion, written by Lee, held that lower courts had not used the appropriate legal standard in evaluating Smith’s intellectual disabilities and his lawyer should have pushed for recusal of the judge presiding at a hearing who had previously heard a case involving Smith.

Lew Conner, a Republican lawyer and former Court of Appeals judge who helped organize this week’s fundraiser for the incumbent justices, says the state justices had little choice and the ruling simply followed legal mandates of the U.S. Supreme Court.

In the other cited criminal case, the Ramsey presentation says the court “voted to let Arthur Copeland, convicted murderer, out of death row and back into society.” Actually, the court, in an opinion written by Wade, ordered a new trial for Copeland in a 1998 shooting death in Maryville, saying the trial judge wrongfully excluded expert testimony his lawyer sought to present, but explicitly saying the death penalty could be considered. The prosecutor subsequently negotiated a plea agreement that freed Copeland after 10 years in prison.

Conner says that the Supreme Court has upheld the death penalty in 18 of the 20 capital punishment cases that have come before it during the three justices’ tenure.

Cooper, in responding to a reporter’s inquiry, also provided a copy of a study by the Brennan Center for Justice on “The New Politics of Judicial Elections,” which says a record $33.7 million was spent on political campaigns for state Supreme Court positions during the 2011-12 election cycle — some of it in states that, like Tennessee, have yes-no retention judicial elections rather than candidate-versus-candidate races.

The Brennan report devotes some attention, for example, to the 2012 Florida retention election that appears to bear some similarities to the pending Tennessee campaign outlined in Ramsey’s presentation. The Florida Republican Party and some conservative groups opposed three incumbent Supreme Court justices appointed by a Democratic governor, anticipating Republican Gov. Rick Scott would replace them with Republicans. A total of about $4 million was spent in the ensuing campaign, the report says, with defenders of the incumbents ultimately outspending the opponents. All three incumbent Florida judges won new terms.

Cooper has declined to say whether he will seek another term as attorney general.

“The good thing about Tennessee’s system is that I don’t have to worry about a campaign and fundraising,” he said in an email.

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